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FY2013-30 Services Agreeement iCompass Technologies Inc. (Icompass) For Agenda Management Software� lUd PyO?pi3-3b:: ICCIMPASS SERVICES AGREEMENT THIS SERVICES AGREEMENT (the "Agreement") is entered into as of the 24,h day of May 2013 (the "Effective Date"), between [Compass Technologies Inc., a corporation with an address at Suite 300 — 150 Victoria Street, Kamloops, B.C. V2C 1Z7 ("[Compass"), and Kodiak Island Borough, with an address at 710 Mill Bay Road, Kodiak, AK 99615 (the "Customer"). IN CONSIDERATION of the agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, (Compass and Customer agree as follows: 1.0 BACKGROUND (a) (Compass has developed a number of hosted application Services (the "Services") and provides the Services to Its customers to assist them in managing records, meeting, Information management and workflow activities. (b) (Compass also provides Implementation, training and support in relation to the Services. (c) The parties wish to enter Into this Agreement to set forth the terms and conditions by which iCompass will provide, and the Customer will acquire the Services. 2.0 PERFORMANCE OBLIGATIONS Each of (Compass and Customer will perform their respective obligations, as specified in this Agreement. 3.0 SCHEDULES This Agreement consists of these cover pages and the following Schedules: Schedule Title A Terms and Conditions B Relationship Contacts C Services and Fees D Implementation, Storage, Training, Coaching and Support 4.0 AUTHORITY Each party confirms that It has read this Agreement and that It agrees to be bound by its terms and conditions. IN WITNESS WHEREOF (Compass and the Customer have executed this Agreement as of the Effective Date. Island Borough by its Name: Charles E. Cassidy, Jr. Title: Borough Manager Date: Attested by: ry: [Compass / signatory: Uyrr rI- 9 �.* Name: Nova M. Javie , MC �qs� Title: Borough Clerk Inc, by Its authorized Finance & 3 -2 - SCHEDULE A - TERMS AND CONDITIONS 1. INTERPRETATION 1.1 DEFINITIONS - Capitalized terms will have the meaning ascribed thereto in Schedule A. 1.2 ORDER OF PRECEDENCE - If there is any conflict with or inconsistency between the terms of this Schedule A and the terms of any other Schedule of this Agreement then the terms of this Schedule A will take precedence to the extent of such conflict or inconsistency. 1.3 SEVERABILITY - If any provision of this Agreement is held to be unenforceable, then such provision will be deleted from this Agreement and the remaining provisions will continue in full force and effect. The parties will in good faith negotiate a mutually acceptable and enforceable substitute for the unenforceable provision, which substitute will be as consistent as possible with the original intent of the parties. 1.4 CURRENCY - Unless otherwise indicated, all dollar amounts referred to in the Agreement are in United States dollars. 1.5 ENTIRE AGREEMENT - With respect to the subject matter hereof, this Agreement, including the Schedules, constitute the entire agreement between the parties and supersede all prior agreements, letters of intent, proposals, understandings and communications between the parties, oral or written. 1.6 GOVERNING LAW - This Agreement will in all respects be governed exclusively by and construed in accordance with the laws of the State of Alaska. Venue will be in the Alaska Court System in either Kodiak or Anchorage. 2. GENERAL OBLIGATIONS AND RESPONSIBILITIES 2.1 iCompass offers to provide the Services to the Customer, and the Customer hereby accepts such offer, all in accordance with the terms and conditions of this Agreement. 2.2 The Customer a) will provide iCompass access to any necessary equipment, materials, information, facilities, services, or accessories to assist with implementation, support, maintenance, training, and hosting; b) acknowledges the recommended minimum system requirements; c) will use the Services only in accordance with the normal operating procedures as advised by the terms of this Agreement. 3. FEES AND PAYMENT TERMS 3.1 The Customer will pay iCompass for the Services according to the Fees set out in Schedule C. 3.2 Customer will pay any amounts related to the Services as per payment terms detailed on the applicable invoice. Customer acknowledges that all iCompass invoices are payable within 30 days of receipt. 3.3 Customer acknowledges that while it can take its time on implementation this is not a valid reason for withholding payment on any invoices. Furthermore, the Customer will not withhold payment on any invoices for any other reason. 3.4 All invoices will be e-mailed to the Customer's Invoicing & Payment contact noted in Schedule B, unless the Customer advises iCompass in writing otherwise. 3.5 All sales, use or goods and services taxes, customs duties, withholding taxes or similar levies of any kind arising with respect to the Services are the sole responsibility of and will be paid by the Customer without deduction from the amounts owing to iCompass under this Agreement. 3.6 After the expiry of the initial term, iCompass reserves the right to increase the annual fees, as listed in Schedule C, on an annual basis in an amount that reflects the increase, if any, in the cost of living for the previous year as stated in the Consumer Price Index, All Urban Consumers, Anchorage, Alaska Area, All Items 1967=100 ("CPI"), as published by the United States Department of Labor, Bureau of Labor Statistics for the most recent period at the time of renewal. 4. DATA OWNERSHIP AND CUSTOMER ACCESS 4.1 The Customer will upload its digital data (the "Data") to the iCompass servers in order to make use of the Services. Data also includes that created within the Services and stored on the iCompass servers. -3- 4.2 Customer acknowledges that Data uploaded directly to File Pro in Word format is converted to HTML and stored by iCompass, and the Customer has the option to also retain the source Word document. The upload of Word documents to other Services are converted to HTML, retained in Word format by default and stored by iCompass. Other file types uploaded to FilePro and all other Services are stored by iCompass and retained in their native format. 4.3 Customer acknowledges that the file types will be supported, and that certain file types are not permitted to be uploaded to the Services. 4.4 Customer acknowledges that the use of the Services is restricted to the employees of the Customer unless the Customer has received written approval in advance from iCompass to provide other individuals with access to the Services, such approval not to be withheld unreasonably. 4.5 The Customer acknowledges that it is solely responsible for the action of any persons the Customer provides access to use the Services to. 4.6 iCompass acknowledges and agrees that the Data shall belong to the Customer and that the Customer shall be deemed the primary custodian of the Data. 4.7 iCompass shall not disclose the Data to any person or entity, except as approved by the Customer in writing or in accordance with applicable public disclosure legislation, in which case iCompass will give the Customer advance written notice at least 10 business days before disclosure, or pursuant to an order of a court in which case iCompass will give the Customer prompt written notice. In the event a request, demand or order for disclosure of the Data is made other than as set out in the foregoing sentence, iCompass shall forthwith return the Data to the Customer. 4.8 Upon the Customer's request and on payment of the Fees, iCompass will provide the Customer with a copy of the Customer's Data in a readable format. 5. OWNERSHIP OF INTELLECTUAL PROPERTY AND GRANT OF LICENSE 5.1 The Parties hereto acknowledge and agree that in the course of providing the Services, iCompass may provide the Customer with access to intellectual property which is proprietary to iCompass (the "iCompass Intellectual Property'). Furthermore, during the Term in the performance of the Services, the Customer may, either solely, or jointly with iCompass, conceive of and/or make inventions, improvements, and/or discoveries related to the iCompass Intellectual Property (the "New Intellectual Property"). The Parties hereto acknowledge and agree that all rights, title and interest in and to the iCompass Intellectual Property and the New Intellectual Property will belong to iCompass. 5.2 iCompass grants the Customer a non-exclusive, royalty -free licence to use the iCompass Intellectual Property and the New Intellectual Property during the Term (the "Licensed IP") in the performance of the Services only. This license shall terminate upon the expiration or earlier termination of this Agreement for any reason whatsoever. 5.3 The Customer will not copy, alter, modify or reproduce the Services and the Licensed IP or documentation relating to the Services and the Licensed IP except to the extent otherwise authorized by iCompass. 5.4 The Customer acknowledges that there is no transfer of title or ownership to the Customer of the Services and the Licensed IP or any related documentation or any modifications, updates or new releases of the Services and the Licensed IP or any related documentation. 5.5 The Customer will ensure that the Services and the Licensed IP are protected at all times from misuse, damage, destruction or any form of unauthorized use, including any use for any purpose that is unlawful or may cause iCompass to violate any law or prohibition. 5.6 In addition to any other remedies available to iCompass under this Agreement or otherwise, any unauthorized use, alteration, modification, reproduction, publication, disclosure or transfer of the Services and the Licensed IP will entitle -4 - Compass to any available remedy at equity and law against the Customer. 6. CONFIDENTIAL INFORMATION 6.1 For the purposes of this Section, the following definitions shall apply: a) "Confidential Information' means any information and materials concerning: any agreements and terms between the parties; the nature and terms of the relationship between the parties; and the other party's, or its suppliers or distributors, business plans, finances, customers, technology, products and/or services, Customer Intellectual Property, Customer Data, iCompass Intellectual Property and New Intellectual Property, identified as or which from the circumstances surrounding disclosure should be understood by the receiving party to be confidential and of substantial value to the disclosing party, which value would be impaired if such information were improperly used or disclosed to third parties. b) "Discloser" means a party disclosing Confidential Information; C) "Recipient" means a party receiving Confidential Information; 6.2 Pursuant to this Agreement, each party may, from time to time, furnish the other party with certain Confidential Information. To the maximum extent permitted by applicable law, Recipient will use the same care to avoid disclosure of any Confidential Information as it uses with its own similar confidential information which it does not wish to disclose, but such standard of care shall not be less than a reasonable standard of care. To the maximum extent permitted by applicable law, Recipient shall not disclose the Confidential Information to any persons other than its directors, officers, employees, agents, professional advisors or other representatives who have a need to know the Confidential Information, who have been instructed that it is Confidential Information, and who are under an obligation of confidentiality substantially similar to the terms of this section prior to such disclosure. The disclosure of Discloser's Confidential Information does not grant to the Recipient any license or rights to any trade secrets, or under any patents or copyrights, except as expressly provided by the license granted in this Agreement. Except as otherwise provided in this Agreement, all Confidential Information is provided by the Discloser on an "as is" basis. The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate (or shall not attach) in any of the following cases: a) the Confidential Information was available to the public at the time of Discloser's communication to Recipient; b) the Confidential Information was available to the public through no fault of Recipient subsequent to the time of Discloser's communication to Recipient; C) the Confidential Information was in Recipient's possession free of any obligation of confidence at the time of Discloser's communication to Recipient; d) the Confidential Information was independently developed by Recipient; or e) the Confidential Information's disclosure is required by law, valid subpoena, or court or government order, provided, however, that Recipient provides prompt notice of such required disclosure and Recipient shall have made a reasonable effort to obtain a protective order or other reliable assurance affording it confidential treatment and limiting its use solely for the purpose for which the law or order requires; or 6.3 Discloser understands that Recipient may develop information internally, or receive information from other parties, that may be similar to Discloser's information. Accordingly, nothing in this Agreement shall be construed as a representation or inference that Recipient will not independently develop products, for itself or for others, that compete with the products or systems contemplated by Discloser's information. 6.4 Promptly upon a Party's written request, the other Party will deliver to the requesting Party all documents and other materials in its possession or control which belong to the requesting Party or which contain, reveal, or embody any of the Requesting Party's Protected Information, and will destroy all other copies in its possession or control. 7. INSURANCE 7.1 iCompass hereby agrees to put in effect and maintain insurance for the Term, at its own cost and expense with insurers having a secure B+ rating or greater, or the equivalent, all the necessary and appropriate insurance that a prudent person in the business of iCompass would maintain including, but not limited to, the following: a) Commercial General Liability insurance on an occurrence basis for third party bodily injury, personal injury and property damage, to an inclusive limit of not less than $5,000,000.00 per occurrence, $5,000,000.00 products and completed operations aggregate. b) Errors and Omissions Liability insurance, insuring liability for errors and omissions in the performance or failure to perform the services contemplated in the Agreement in the amount not less than $2,000,000.00 per claim and in the annual aggregate. 8. LIMITED WARRANTIES 8.1 iCompass warrants and represents to the Customer that: a) b) c) d) The Services and the Licensed IP will be performed or provided in a good workmanlike manner; iCompass and its personnel have the necessary skills and experience to perform the Services in accordance with the requirements and specifications of this Agreement; iCompass and its personnel will perform their tasks in delivering the Services in a professional manner and will comply with all lawful rules and procedures required by the Customer while on the premises of the Customer; iCompass owns the Services and Licensed IP; and, -5 - e) iCompass has the right to provide the Services and to grant the license set out in this Agreement. 8.2 iCompass and its suppliers disclaim all other warranties, representations, conditions or guarantees, either express or implied, including but not limited to, implied warranties of durability, merchantability, merchantable quality, and fitness for a particular purpose, with regard to the Services and the Licensed IP and the accompanying documentation. 9. LIMITATION OF LIABILITY 9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES AND THE LICENSED IP, EVEN IF CAUSED BY THE OTHER PARTY'S NEGLIGENCE OR EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9.2 If, for any reason, iCompass becomes liable to the Customer or any other party for direct or any other damages for any cause whatsoever, and regardless of the form of action (in contract or tort), incurred in connection with this agreement, the Services and modifications thereto, then the aggregate liability of iCompass for all damages, injury, and liability incurred by Customer and all other parties in connection with the Services and the Licensed IF or This Agreement, shall be limited to an amount equal to the charges associated with the provision of Services and the Licensed IP under the agreement which gave rise to the claim for damages. 10. INDEMNITY 10.1To the maximum extent permitted by applicable law, and subject to appropriation by the Kodiak Island Borough Assembly, the Customer shall defend, save harmless and indemnify iCompass and its employees, agents and suppliers from and against any and all claims and liabilities, including reasonable legal fees, made by any third party related to or arising from any breach of the Agreement, or any Schedules, and from use of the Services and the Licensed IP by the Customer. 10.2iCompass shall defend, save harmless and indemnify the Customer and its employees, agents and suppliers from and against any and all claims and liabilities including reasonable legal fees, made by any third party related to or arising from a) any action by a third party against the Customer that is based on a claim that any Services and the Licensed IP, the results of any Services and the Licensed IP, or the Customer's use thereof, infringe, misappropriate or violate a third party's intellectual property rights, provided that; i) the Customer gives iCompass prompt written notice of any such claim, demand or action; ii) the Customer allows iCompass to control and the Customer reasonably co-operates with iCompass in the defence of same and all related settlement negotiations at iCompass' sole cost and expense; iii) the infringement is not solely caused by the Customer's instructions or modifications to the Services and the Licensed IP; and iv) the Customer permits iCompass to, at iCompass' option, provide a work -around solution, procure a license, substitute an alternate product of equivalent functionality; or b) any action by a third party against the Customer that is based on any negligent act or omission or wilful conduct of iCompass that results in bodily injury, sickness, disease or death, or injury or destruction to tangible property. 11. TERM AND TERMINATION 11.1TERM - The initial term of this Agreement shall be 5 years commencing on the Effective Date. Customer shall have the option to extend the term of this Agreement, under the same terms and conditions as set forth in this Agreement, for up to three additional one-year terms. Customer may exercise this option by providing written notice to iCompass at least 90 days prior to the end of the then current term. 11.2TERMINATION - Either party may terminate this Agreement at its option immediately by notice in writing if the other party is in breach of any term of this Agreement and such breach is not remedied within 30 days of written notification by the terminating party. On termination of this Agreement, iCompass shall ensure that all Data is erased and removed from every item of equipment or from products used in providing the Services and all media that it has been installed, downloaded or otherwise put on. 11.3SURVIVAL - Expiration or earlier termination of the Agreement, in whole or in part, through any means and for any reason shall not relieve the parties of any obligation accruing prior thereto, including, but not limited to, the obligations to pay all invoices outstanding as of the date of termination. Notwithstanding the expiration or earlier termination of the Agreement, in whole or in part, the provisions relating to termination, confidentiality, warranty, and indemnity shall survive such expiration or earlier termination. 12. NON -COMPETITION 12.1Cu5tomer covenants with iCompass that Customer shall not, without the prior written consent of iCompass, at any time during the Term, or for a period of 2 years following termination, whether directly or indirectly, whether personally or on behalf of any other person or vendor, solicit any customers of iCompass in an effort to sell to the iCompass customers services competitive in nature to those offered by iCompass at that time. 13. GENERAL 13.SCOMMERCIAL USE - Customer acknowledges that this Agreement is for a commercial application and the Customer acquires no rights to the Licensed IP, except as set out in this Agreement. 13.2FORCE MAJEURE - A party is not liable under the Agreement for non-performance caused by events or conditions beyond that party's control, if the party makes reasonable efforts to perform. This provision does not relieve either party of its obligation to make payments then owing. -7- 13.3WAIVER OR DELAY - Any express waiver or failure to exercise promptly any right under the Agreement will not create a continuing waiver or any expectation of non -enforcement. 13.4ASSIGNMENT - Neither Party may assign or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld. 13.SNOTICES AND MODIFICATION - Notices under the Agreement may be delivered by hand, by mail, by e-mail or by facsimile to the address specified on Page 1 of this Agreement, or to such other addresses as the parties may from time to time inform each other by notice hereunder. No modification to the Agreement will be binding, unless in writing and signed by an authorized representative of each party. 13.6AGREEMENT IS BINDING - This Agreement will endure to the benefit of and be binding upon the parties and their respective successors and assigns. 13.7000NTERPARTS - This Agreement may be executed in counterparts and by facsimile and e- mail, and when each counterpart is signed by all parties and delivered, faxed or e-mailed to the other parties, the counterparts together shall constitute one and the same Agreement. SCHEDULE B - RELATIONSHIP CONTACTS The following contacts have been assigned to this relationship: (a) Business Relationship iCompass: Joel Neustaeter Customer: Paul VanDyke Phone: 250-851-9401 Phone: 907-486-9336 Fax: 250-851-9402 Fax: 907-486-9391 E -Mail: jneustaeter@icompasstech.com E -Mail: pvandyke@kodiakak.us (b) Implementation & Training: iCompass: Alex Richards Customer: Phone: 250-851-9401 Phone: Fax: 250-851-9402 Fax: E -Mail: arichards@icompasstech.com E -Mail: (c) Invoicing & Payment iCompass: Rob Wycherley Customer: Phone: 250-851-9401 Phone: Fax: 250-851-9402 Fax: E -Mail: rwycherley@icompasstech.com E -Mail: (d) Special Alerts Contact (CUSTOMER): Customer: Phone: Fax: E -Mail: SCHEDULE C - SERVICES AND FEES iCompass shall provide the following Services to the Customer for the Fees indicated: V/ Meeting Management Solution (MMS) o Year Fee: $24,500 o Years 2+ Fee: $5,500 (Years 2-5 + Fee: $5,500 each year) MMS includes the following modules: • Meeting Manager (unlimited Meeting Templates) o Agenda & Agendallotes o Minutes • Action Tracking o Meeting Tracker + Report Tracker o Output Document Capability (1 for each Tracker, if applicable) • FilePro o Up to 200 documents loaded by iCompass o FilePro Custom Banner o FilePro Connector o FilePro Enterprise Search • Share Point Connector, Laserfiche Connector, Granicus Connector (if applicable) • Agenda SE • Additional Services o Includes 3 days of onsite training with 1 iCompass trainer o Additional onsite coaching, training, implementation is available for additional charges m SCHEDULE D - IMPLEMENTATION, STORAGE, TRAINING, COACHING & SUPPORT Implementation: Success Plan • Configuration • N of documents uploaded by iCompass: 200 • N of Meeting Types: Unlimited Storage: • Storage Allocation: Up to 5 GB of storage is included in the fees set out in this Agreement. Additional storage is automatically provided at $30/GB per year, and is calculated and payable on an annual basis. Training: • Year 1: Unlimited • Years 2+: Unlimited • Product Training can only be requested by one of 5 individuals who are registered with iCompass as Authorized Champions. • All Product Training will be provided via our MAX20 Training Program - on-line, workshop style training with an instructor leading each module— unless otherwise agreed to. Coaching Sessions: • Year 1: Unlimited • Years 2+: Unlimited • Coaching Sessions can only be requested by one of S individuals who are registered with iCompass as Authorized Champions. • All Coaching Sessions will be provided in 30 or 60 minute increments, on-line, and with an instructor leading the session — unless otherwise agreed to. Support: • Year 1: Unlimited • Years 2+: Unlimited • Support can only be requested by one of 5 individuals who are registered with iCompass as Authorized Champions. • Only Authorized Champions will receive support — inquiries from others within the Customer's organization will be directed to the Authorized Champions • The Customer will commit to making best efforts to embrace self-help tools and documentation as provided within the iCompass Customer Resource Center. • Support requests will be documented and e-mailed to the Authorized Champion making such requests (as well as added to the Customer Resource Center) so as to minimize similar support requests in the future. Other Notes: • License includes Unlimited Users • Regular and Major Releases are included at no additional cost • The Customer will commit to making best efforts to provide iCompass with a minimum of one week's notice of any cancellation or rescheduling of participation within Refresher Training/Coaching Sessions. • The Customer may cancel or reschedule a Coaching Session and/or participation in on-line Training twice with less than one week's notice without penalty. After the second occurrence, there will be a $200 fee charged to the Customer for each subsequent occurrence.